Want to Stop Climate Change? Take the Fossil Fuel Industry to Court

By

April 21, 2014

Demonstrators gather during a protest against the Keystone XL Pipeline outside the White House on Sunday, November 6, 2011, in Washington. (AP Photo/Evan Vucci)

In November 2013, American climate scientist Richard Heede, of the Colorado-based Climate Accountability Institute, published a paper with a revolutionary thesis. After nine years of researching the energy industry in dozens of countries, he concluded that nearly two-thirds of the world’s carbon dioxide and methane emissions dating back to the dawn of the industrial era were the responsibility of just ninety companies. Heede called them the “carbon majors.”

Not surprisingly, the biggest players were publicly owned fossil fuel corporations like Exxon-Mobil and Chevron, along with state-held or nationalized energy monopolies in countries like Russia and Saudi Arabia. Just five investor-owned companies—BP, Chevron, Conoco-Phillips, ExxonMobil and Shell—produced enough fossil fuel to account for 12.5 percent of human-generated CO2 since 1854. Seven of the carbon majors are cement manufacturers, a particularly noxious, carbon-intensive industry. The eighty-three energy producers on Heede’s list extracted, refined and marketed the oil, gas and coal that have powered modern civilization. Along the way, they started the process that will ultimately cause our climate system to crash.

Heede’s paper, published in the journal Climatic Change, is arguably the most provocative piece of scientific research in the climate field in years. However, except for a dismissive reference in a New York Times blog and a small piece in the Los Angeles Times, the major American media outlets ignored it.

But the lawyers didn’t.

In September, two months before Heede’s article was published, leading environmental attorneys from around the world met with Heede at a confidential workshop at American University in Washington, DC, to discuss what role his findings might play in lawsuits that could force fossil fuel companies (or their government regulators) to reduce greenhouse gas emissions.

Matthew Pawa, a climate attorney based in Massachusetts, calls Heede’s work “hugely important.”

“What Heede did helps assign blame. It’s a list with names and numbers. It individualizes responsibility in a way that had not been done before,” says Pawa, who brought a suit against ExxonMobil and other carbon majors seeking climate-related damages for an Alaskan Eskimo village that will be largely engulfed by the Chukchi Sea within a matter of decades.

One well-established environmental lawyer is in the preliminary stages of putting together a lawsuit employing Heede’s statistics. Other attorneys were quick to praise the study, but cautioned that no one has yet hit upon a legal theory that can use Heede’s work to force the carbon majors to cough up some of the astronomical sums that experts believe must be spent worldwide to adapt to rising seas, heat waves, droughts and other extreme-weather events caused by climate change—not to mention help pay for the damage already caused.

“You really need the science to do anything legally,” says Sharon Eubanks, the former head of the Justice Department’s “tobacco team,” which got a federal judge to award a civil judgment against the major cigarette companies in 2006 under the Racketeer Influenced and Corrupt Organizations Act. “Policy, litigation—all of that follows the science,” she adds. “But that’s far from all you need. You need a legal theory that fits the facts and can survive attack in a real courtroom.”

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As Pawa explains it, “We’re where the tobacco lawyers were before they started winning. It takes time and it takes persistence for the legal theories to evolve and mature.”

While the industry scoffs at the importance of climate-change lawsuits, Big Carbon is thought to be taking them very seriously in private—especially after a federal appeals court found in 2005 that US cities and even individuals suffering economic and other damages from climate change had standing to sue under the National Environmental Policy Act. The plaintiffs included the cities of Oakland, California, and Boulder, Colorado, along with several members of Greenpeace and Friends of the Earth, ranging from a maple tree farmer to a marine biologist. An analyst with the conservative Pacific Legal Foundation called the idea of such a lawsuit “nuts”—but within four years, a federal judge had ruled for the plaintiffs, opening the courthouse doors to new classes of litigants.

Some legal analysts believe that fossil fuel producers could be vulnerable to fraud or civil conspiracy charges if it can be legally proved that companies like ExxonMobil and Peabody Coal spent millions funding climate-change-denying organizations like the Competitive Enterprise Institute and the Greening Earth Society, while internally acknowledging that the science supporting anthropogenic (i.e., human-caused) climate change was a settled issue. That could put Big Carbon in roughly the same position as Big Tobacco was in the early 1990s, when cigarette makers continued to cultivate public doubt about their product’s harmfulness long after they had accepted that it was addictive and deadly. As the tobacco suits lurched forward, documents—as well as some infamous congressional testimony—proved the industry’s bad faith, swaying public opinion against tobacco. It was that, along with the massive wave of lawsuits by all fifty state attorneys general, that helped persuade Congress to bring the cigarette makers under the federal regulatory umbrella.

In the case of energy, anthropogenic climate change has been accepted science since at least 1990—meaning that the coal, oil and gas industries have been on notice for at least twenty-five years that they are making the planet uninhabitable. It was also in the early ’90s that the energy industry began to aggressively push what it pretended was a “counterscience” of climate-change denial, even as it continued to dump a substantial portion of total historic CO2 emissions into the earth’s atmosphere.

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Heede’s paper turned out to be well-timed. A few months after it appeared, the Obama administration and the United Nations released major scientific reports predicting sudden increases in sea levels, extreme weather and the size of areas prone to drought. Climatologists and environmentalists hope the twin studies will trigger action to slow greenhouse gas emissions and force governments to finally deliver on repeated promises to attack the climate problem. But if decisive action doesn’t come—and recent history offers little ground for optimism—the lawyers at the American University workshop hope Heede’s work will provide a road map for a new way to address the problem through the courts.

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As 2014 began, a cadre of environmental activists, lawyers and scientists was trying to figure out how to do just that. Greenpeace and Earthjustice are fielding teams of lawyers to prosecute climate-related legal actions not only in courts all over the world, where they sometimes assist foreign lawyers, but before human rights commissions, United Nations tribunals, and regulatory and other bodies in countries like India, where several major victories have been won against coal plants, the single biggest source of industrial CO2.

Increasingly, legal actions have framed global warming as a human rights issue for island nations and indigenous peoples, whose way of life is imminently threatened.

Take the Athabaskans, an indigenous people scattered across Alaska and northern Canada. With the help of lawyers from Earthjustice, the Athabaskans petitioned the Inter-American Commission on Human Rights (IACHR) last year, charging that greenhouse gas emissions from the burning of coal and diesel fuel are contributing to the rapid Arctic warming that threatens their livelihood and even their lives.

The Athabaskan petition charges that the Canadian government failed to control emissions of black carbon, a tiny particulate produced by diesel engines and the incomplete combustion of coal. Black carbon is a short-lived but potent “climate forcer” with 1 million times the heat absorption of CO2. Spumes of black carbon, especially from Canadian sources, are a looming disaster for the Arctic, which is already warming twice as quickly as the rest of the world and could see average temperatures rise 33.8 degrees Fahrenheit or more by 2080. As a result, the Athabaskans’ petition to the IACHR charges that they are being deprived of their rights to property, health, culture and a means of subsistence.

“Many Athabaskan communities are still partly, and in some cases completely, subsistence-based,” explains Erika Rosenthal, an Earthjustice lawyer who helped the Athabaskans with the petition. “Winter comes later now. They can’t hunt as well. They’re afraid to cross over ice, because hunters fall through. Athabaskans are typically caribou people. The migratory patterns change; you don’t find the caribou where you used to, which is a big deal if you’re out looking for them.”

The Athabaskans’ petition became possible only in the last three years, as the science on black carbon has become more definite, Rosenthal adds. The focus on the tiny particulate is important: because it’s such a powerful climate forcer, reducing emissions will bring almost immediate benefits. While that won’t stop Arctic warming, it may “bend the curve” enough to give communities and species more time to adapt.

And though the IACHR can’t render a legally binding judgment, it can investigate and validate the Athabaskans’ claims and bring the Canadian government to the table to hammer out an agreement. “No nation likes to be labeled as a human rights violator,” Rosenthal observes. “That never sits well.”

Since global warming is a uniquely international problem, environmental lawyers are crafting strategies that take advantage of legal traditions in countries that allow for climate-based challenges. Obscure corners of the law are being researched and brought to bear. One precedent that’s being used is the case of the Federated States of Micronesia, which in 2009 filed a request with the Czech Republic for a “transboundary environmental impact assessment.” The Czechs were about to rubber-stamp an extension of the outdated Prunerov coal-fired power plant. By then, Micronesia had already seen record high tides wipe out food crops, power plants and homes—not to mention two small islands.

“The Federated States of Micronesia is seriously endangered by the impacts of climate change,” the Micronesians wrote to the Czechs. “Prunerov is one of the biggest single industrial sources of CO2 emissions in the world,” and “the commissioning or retrofit of any large coal power plant could play a relevant role in the destruction of the entire environment of our state.”

Though the plant was ultimately recommissioned, Kristin Casper, an Amsterdam-based Greenpeace lawyer who worked with the Micronesians on the case, considers it a model for similar transboundary actions now in the works. “It created quite a stir,” she recalls. “The Czech environmental minister had to resign. He was under such pressure to give approval to the coal plant, but the Micronesian intervention made it so high-profile they ended up having to make significant adjustments.”

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In the United States, efforts to tackle climate change through the use of courts and regulatory bodies are accelerating in the face of continued political paralysis.

In January 2013, in the aftermath of Superstorm Sandy, Consolidated Edison, the utility serving New York City, asked for a rate increase to fund a billion-dollar storm-hardening program to build flood walls around power substations so that they wouldn’t be knocked out in the next Sandy-like event. But the plan, which was designed without input from climatologists, was far from comprehensive, prompting Columbia University environmental law professor Michael Gerrard to formally intervene with the Public Service Commission. Gerrard asked the PSC to require Con Ed to rewrite its plan so that the city’s power grid could survive a number of other climate-related threats besides flooding.

“We said, ‘Lots of other warming-related things could happen—such as an extreme heat wave—and Con Ed should be prepared for those, too,’” Gerrard says. He then brought in climate scientists from Columbia to make a presentation to top Con Ed executives concerning all the potential impacts of a rapidly warming northeastern US coast on a city with no high ground.

It was a grim picture. By 2050, about a quarter of New York City—and virtually all its power plants—will lie within a floodplain, as the sea level is projected to rise as much as 2.6 feet. Meanwhile, the number of above-90-degree days per year is expected to triple, to as many as nearly sixty.

Con Ed agreed to incorporate climate science into its future infrastructure plans and to retrofit the grid so that it can handle all the weather conditions the Columbia University team predicted. On February 20, that agreement was formally approved by state regulators, who promised to require the rest of New York’s utilities to do the same. Utility poles will now be reinforced to withstand battering winds, and back-up fuel systems will provide power so the grid won’t fail on those 90-plus-degree days.

Gerrard’s Columbia Center for Climate Change Law is now searching for partners elsewhere in the nation to get other utilities to adapt to the unsettled weather of the future.

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Although Gerrard scored an important victory, there’s still the matter of the $1 billion tab that ratepayers will be expected to pick up in order to repair the damage from Superstorm Sandy and retool a portion of the city’s infrastructure for the extreme-weather future. Plaintiffs’ lawyers like Matthew Pawa think the fossil fuel industry should pay for that and a whole lot more, if possible, via the tort system.

Richard Heede agrees. “Bear in mind, they could have made a different choice twenty or thirty years ago, when the science of climate change was really emerging as being more and more certain that anthropogenic emissions were causing climate change,” he says. “They could have decarbonized their product, invested more heavily in renewables or even natural gas. But instead they invested in obfuscation and denial. There was a point where they knew, but they kept doing what they were doing anyway. And then did worse—lied and pretended.”

Whether or not a judge ever orders any fossil fuel company to pay for climate change, some environmentalists see the lawsuits as tools to raise public awareness of corporate responsibility for the climate crisis. That could help change the debate from whether it’s the developed or the undeveloped world that should shoulder the costs of giant storms and flooded cities to whether the bill should be paid by the corporations that continued to damage our climate system long after they knew what was happening.

“The anti-tobacco guys lost and lost and lost in court for decades—until they won,” says Kert Davies, who worked on the breakthrough case on behalf of Oakland, Boulder and other cities while a researcher at Greenpeace. “That’s point number one. Plus, advocates like me can say that we don’t care if we win as long as we make a point.

“We want to influence the court of public opinion,” Davies continues. “We have to educate people about the truth after all this industry disinformation. So let the lawsuits produce documents and testimony and all sorts of information for the public. That’s one of their functions. That’s where the tobacco wars were won. Even [Representative Henry] Waxman’s famous tobacco hearings in Congress—the tobacco execs never admitted anything. You didn’t need to get to that. By the time they left the hearing room, they were already pariahs. We’d seen through them.”